In 512(f), the “F” Stands for “Futility”–Shaffer v. Kavarnos

This 512(f) case reached a bench trial on the Lenz issue of what it means for a copyright takedown notice sender to consider fair use before sending their 512(c)(3) notices. Most 512(f) plaintiffs never get anywhere close to a trial, so this was progress for a 512(f) plaintiff. Still, any guesses who won?

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Both litigants are YouTubers (sorry, I can’t bring myself to link to either channel). The defendant runs a “true crime” channel that covers other stuff too. The plaintiff runs a channel calling out other YouTubers. The defendant twice sent DMCA takedown notices targeting the plaintiff’s videos; the plaintiff counternoticed both times. The court tartly says “the Court’s view [is] that neither Defendant nor Plaintiff was a fully credible witness.”

The court explains why 512(f) plaintiffs can’t win: per Rossi, plaintiffs need to establish the defendants’ subjective scienter when sending the takedown notices:

Section 512(f) establishes a high bar to liability—without direct evidence that establishes the state of mind of the party issuing the takedown notice at the time of issuance, a successful plaintiff will likely have to stack inference upon inference derived from circumstantial evidence to reach a preponderance as to defendant’s state of mind.

The court, as a trier of fact, says “the evidence falls just short” of showing that the defendant didn’t consider fair use (per Lenz) before sending the takedown notices.

[Note: 512(f) cases typically fail on a motion to dismiss because the plaintiffs can’t properly allege the defendant’s scienter without doing discovery. Here, the plaintiff got all permitted discovery but still couldn’t produce a smoking gun.]

To show the defendant didn’t inadequately consider fair use, the plaintiff pointed to a public statement the defendant made: “I told you and you’ve been told that if you put my intellectual property, my video, into your video, any amounts of it, I will strike it.” The court doesn’t count this evidence because it was made a year after the defendant sent the takedown notices in question here. Further, the statement doesn’t prove that the defendant failed to consider fair use when sending those takedown notices. The court also credits evidence that the defendant had conducted Google searches for “fair use.” [Note: if future takedown notice senders want to absolve themselves of 512(f) exposure, apparently best practices now include having a searchlog showing the term “fair use”…?]

The defendant repeatedly referenced both copyright and non-copyright concerns in her takedown notices. The court says:

this circumstantial evidence requires the Court to draw too many inferences solely in Plaintiff’s favor. There is no reason to think, and Plaintiff offers no support for the proposition, that the inclusion of non-intellectual property reasons for striking a video renders the invocation of intellectual property reasons less believable or irrelevant.

Finally, the plaintiff points to the defendant’s substantive overclaims as evidence of the illegitimacy of the takedown notices, to no effect.

Plaintiff also argues that Defendant could not have considered fair use because, if she had, she would not have struck Plaintiff’s videos that only included between six and 30 seconds of Defendant’s videos.  To Plaintiff, such usage is “plainly fair use.” But this argument overlooks the fact that Defendant need not have formed an objectively reasonable belief that Plaintiff’s videos infringed Defendant’s copyright; rather, she need only have had a subjective belief that the identified material infringes her copyright. [cleaned up]

The court says “this is a close case” but the plaintiff didn’t satisfy her burden. Case dismissed.

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When the Lenz case first came out, some people celebrated it as proof that 512(f) required copyright owners to meditate about fair use before zinging takedown notices across the Internet. While that is true per the literal statement of the case’s holding, it has proven inconsequential to the outcome.

As I described with respect to the Lenz case a decade ago:

Let’s look at a hypothetical deposition transcript of a notice sender:

Q: Did you consider fair use? A: Yes Q: What steps did you take to evaluate the possibility of fair use? A: I thought about it and decided it probably didn’t apply

Where does a 512(f) plaintiff go from here? It seems like the sender can legitimately claim that they considered fair use, albeit not in a “searching or intensive” way. 512(f) case apparently over.

That’s this case in a nutshell, no?

In other words, Lenz’s precedential benefit to a plaintiff is overwhelmed by the Rossi case. So long as the Rossi standard–that 512(f) plaintiffs must establish the defendant’s subjective scienter when sending the notice–remains in place, it is almost impossible for any 512(f) plaintiff to overcome it, with or without the Lenz case. Here, the 512(f) plaintiff got as far as a bench trial and persuaded the judge that it was a “close case,” and yet the outcome is the same as virtually all the others: 512(f) plaintiff loses.

More precisely, both sides lost here. They spent their time and money to reach a bench trial, only to have the judge publicly question both of their credibilities. On the plus side, at least they both got their day in court.

Case Citation: Shaffer v. Kavarnos, 2025 WL 2299173 (S.D.N.Y. Aug. 7, 2025). The CourtListener page.

Prior Posts on Section 512(f)

* Does Anyone Still Care About NFTs? (Yuga Labs, LLC v. Ripps) — Guest Blog Post * Viral DRM Awarded Damages for Its 512(f) Claims, But At What Cost? * Big YouTube Channel Gets TRO Against Being Targeted by DMCA Copyright Takedown Notices–Invisible Narratives v. Next Level Apps * The Competition Between Temu and Shein Moves Into a Courtroom–Whaleco v. Shein * Copyright Battles Over City Council Videos * Record Label Sends Bogus Takedown Notice, Defeats 512(f) Claim Anyway–White v. UMG * Plaintiffs Make Some Progress in 512(f) Cases * 512(f) Doesn’t Restrict Competitive Gaming of Search Results–Source Capital v. Barrett Financial * 512(f) Once Again Ensnared in an Employment Ownership Dispute–Shande v. Zoox * Surprise! Another 512(f) Claim Fails–Bored Ape Yacht Club v. Ripps * You’re a Fool if You Think You Can Win a 512(f) Case–Security Police and Fire Professionals v. Maritas * 512(f) Plaintiff Must Pay $91k to the Defense–Digital Marketing v. McCandless * Anti-Circumvention Takedowns Aren’t Covered by 512(f)–Yout v. RIAA * 11th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal–Alper Automotive v. Day to Day Imports * Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement–Sunny Factory v. Chen * Another 512(f) Claim Fails–Moonbug v. Babybus * A 512(f) Plaintiff Wins at Trial! –Alper Automotive v. Day to Day Imports * Satirical Depiction in YouTube Video Gets Rough Treatment in Court * 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal * 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity * Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯ * A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du * 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America * 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center * Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman * Another 512(f) Claim Fails–Ningbo Mizhihe v Doe * Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin * How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well) * Another Section 512(f) Case Fails–ISE v. Longarzo * Another 512(f) Case Fails–Handshoe v. Perret * A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo * DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk * Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church * ‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein * 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case–Lenz v. Universal * Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership * It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner * Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies * Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran * 17 USC 512(f) Is Dead–Lenz v. Universal Music * 512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom * Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning * 17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals * 17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment * Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG * Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals * Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals * Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI * Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path * Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal * YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman * Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal * 512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici * Biosafe-One v. Hawks Dismissed * Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner * Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal * Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks * New(ish) Report on 512 Takedown Notices * Can 512(f) Support an Injunction? Novotny v. Chapman * Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment

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